Family Related Issues: Family and Medical Leave Act

Carolyn Dodge

Professor Eric Baime, JD MBA

Law, Ethics, and Corporate Governance LEG500009016*201102

January 29, 2011

Explain if it matters that a parent literally had nothing to do with a biological child in order for the child to take advantage of the Family and Medical Leave Act (FMLA) to care for that parent.

The Family and Medical Leave Act of 1993 (hereinafter FMLA) provides an ethical basis for human resource decisions involving conflicts between an employer’s interest in having an employee at work to pursue the organization’s needs and an employee’s need to be away from work to attend to serious family needs that include the serious health condition of the employee, a family member, or the addition of a new child to the employee’s family. If that child resides in the home of the caregiver such as that parent is providing care or guardianship even if that child is not their biological child, then yes, they would be entitled to the Family and Medical Leave Act to care for that child. They would have to show proof of court documents stating that they are the legal guardian of the child. The FMLA encourages employers to view employees who adopt children or act as foster parents of children as parents with equal rights to leave as employees who are biological parents.

Explain whether the size of the business can have any effect on whether Tony is eligible for family leave under the FMLA.

Herman at Rally Motors owns a small business car dealership that his father left to him and needs his top salesmen to keep his business going. Tony is one of his top car salesmen and sold 11 cars in a month. Tony needs to take off for 3-weeks to take care of his dad who needs to have an operation done. In the car business it is understood they need all the salespeople they can to sell their cars. These people work off of commission. The business could hurt, but Tony suggested to Herman have the part-time salespeople work full-time until he returns which is a great suggestion. I understand that Herman’s business “Rally Motors” is a small business but Tony wants to make sure his dad is well taken care of and he is only asking for 3-weeks off. The only question is “does Rally Motors employ at least 50 employees”, If not, then Tony would not be entitled to the FMLA. “The FMLA entitles eligible employees to time off from work for serious health conditions of themselves, family members, and for birth, adoption, or foster placement. The basic leave provided by the FMLA is twelve work-weeks of leave in a leave calculation year. Employees will be eligible for FMLA leave if they have been employed twelve months and have worked at least 1250 hours in the twelve months prior to the leave. Employees must also work for an employer with at least fifty employees in a seventy-five-mile radius.” The Family Medical Leave Act: An Ethical Model for Human Resource Policies and Decisions. Retrieved from: http://www.lawmemo.com/articles/fmla.htm
Explain whether Herman can or cannot imply that if Tony takes a leave of absence under the FMLA, he may not have a job when he returns.

Herman can not imply that if Tony takes a leave of absence under the FMLA, he may not have a job when he returns. According to the job security provisions of the FMLA are superior to most other legal or contractual job security protections for employees, are generally applicable without exception, and therefore lead to consistent ethical practices by employers to provide a high level of job security to employees on FMLA leave. Nonetheless, the job security provisions reflect a balance of employer/employee needs because of their short-term nature and because no job security is provided in bona fide job elimination situations where other employees not utilizing FMLA leave would have no job security. “FMLA makes it unlawful for the District to interfere with, restrain, or deny the exercise of any right provided under FMLA; or discharge or discriminate against any person for opposing any practice made lawful by FMLA or involvement in any proceeding under or relating to FMLA”. According to the supplement materials, Your Rights under the Family and Medical Leave Act of 1993.

Describe who is covered by the Family and Medical Leave Act (FMLA) of 1993. Since this is Tony’s dad, he falls under the FMLA. “An employee’s spouse, children (son or daughter), and parents are immediate family members for purposes of FMLA. The term "parent" does not include a parent "in-law". The terms son or daughter do not include individuals age 18 or over unless they are "incapable of self-care" because of mental or physical disability that limits one or more of the "major life activities" as those terms are defined in regulations issued by the Equal Employment Opportunity Commission (EEOC) under the Americans with Disabilities Act (ADA).” Family & Medical Leave Act of 1993- FMLA. Retrieved from: http://www.osrllg.com/additional_fmla.php
Explain the extent to which an employer can make his or her own determination as to the eligibility of an employee under the Family and Medical Leave Act. In all circumstances, it is the employer's responsibility to designate leave taken for an FMLA reason as FMLA leave. Employees are eligible to take FMLA leave if they have worked for their employer for at least 12 months, and have worked for at least 1,250 hours over the previous 12 months, and work at a location where at least 50 employees are employed by the employer within 75 miles. If the employee meets these criteria then yes, they are entitled to the FMLA. The FMLA applies to any employer in the private sector who engages in commerce, or in any industry or activity affecting commerce, and who has 50 or more employees each working day during at least 20 calendar weeks in the current or preceding calendar year.
The law covers all public agencies (state and local governments) and local education agencies (schools, whether public or private). These employers do not need to meet the "50 employee" test. Title II of FMLA covers most federal employees, who are subject to regulations issued by the Office of Personnel Management. References

The Family Medical Leave Act: An Ethical Model for Human Resource Policies and Decisions Retrieved from: http://www.lawmemo.com/articles/fmla.htm

Supplement Materials, Your Rights under the Family and Medical Leave Act of 1993.